Brown v The Executors of the Estate of HM Queen Elizabeth Mother & Ors

An appeal is confined to the issue that was actually before the lower court. A first-instance judge’s consideration of an additional submission beyond the essential task does not enlarge the scope of the appeal. Evidence directed only to that additional matter is otiose and need not be placed before the appellate court. Where the lower court’s proceedings show that locus was the sole issue argued, the appeal should address only whether the claimant had standing.

The appellant challenged orders sealing the wills of HM Queen Elizabeth the Queen Mother. The appeal arose from proceedings before the President of the Family Division. The respondents submitted that the only issue before the President had been whether the appellant had locus. The appellant had also advanced submissions concerning a claimed public right to inspect the wills and the basis on which the sealing orders had been made. The Court of Appeal had to determine the proper scope of the appeal and whether material before the former President was relevant.

1. Appeal allowed. Lord Justice Thorpe held that the summons to strike out, the supporting affidavit and the transcript showed that the only issue argued before the President was locus.
2. The scope of the appeal was therefore confined to whether the appellant could establish standing. The Court of Appeal was not required to investigate wider issues concerning the material or reasons that had been before the former President when the sealing-up orders were made.
3. The President’s reserved judgment had recorded and dealt with a further submission concerning the appellant’s alleged public right to inspect under sections 124 and 125 of the 1981 Act, and whether the former President had acted on the basis of an alleged practice. Lord Justice Thorpe considered that the President had gone beyond his essential task in dealing with that submission relatively extensively.
4. Because that additional matter was outside the issue properly arising on the appeal, evidence concerning what had been before the former President and any reasons for the sealing orders was otiose. The earlier order was to be set aside to the extent that it required that material to be produced.
5. The full court was directed to address the legal issue whether the appellant could show standing. Lord Justice Dyson agreed with Lord Justice Thorpe.

• Court of Appeal (Civil Division): Allowed the appeal and confined the forthcoming hearing to the issue of the appellant’s locus or standing. It set aside the earlier direction requiring production of material before the former President.
• High Court of Justice, Family Division: The President made two sealing-up orders and dealt with locus together with an additional submission concerning the basis for those orders. The citation of the decision appealed from is not stated.